The approach to UNDRIP within the African Regional Human Rights System

ABSTRACT

In May 2017, as the United Nations Declaration on the Rights of Indigenous Peoples prepared to celebrate a decade since its formal adoption, the issue of indigenous peoples' rights in Africa fell to be considered for the first time by the continent’s highest human rights body, the African Court of Human and Peoples' Rights, in the Ogiek case against Kenya. The Court's ruling followed – and to some extent, drew upon – the African Union's 2010 adoption of the African Commission on Human and Peoples' Rights' landmark ruling against Kenya in the Endorois case. The first cases to recognise indigenous peoples' rights over and in connection with their ancestral land, both rulings have been widely recognised as significant developments in the advancement of indigenous peoples' rights in Africa. Despite the fact that Kenya is not a signatory to the Declaration, the Court and the Commission specifically drew inspiration from the concept of indigenous peoples as set out within it. This paper will explore the approaches of these two African human rights bodies to the Declaration, providing authoritative analysis from the lead lawyer litigating Africa's foremost indigenous peoples' rights case and drawing on her extensive experience working with the Endorois to seek implementation of their successful ruling, a decade after the Declaration's adoption.

KEYWORDS:

• United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
• Africa
• human rights
• indigenous peoples
• litigation

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Lucy Claridge wrote this article in her capacity as Legal Director at Minority Rights Group International, where she managed the Legal Department. She is now Director of Strategic Litigation at Amnesty International. The author is grateful for the research assistance of Emelie Kozak, Legal Fellow at Minority Rights Group International, in writing this article.

Notes

1. ACHPR Res.121 (XXXII) 07: Resolution on the United Nations Declaration on the Rights of Indigenous Peoples.

2. Ibid.

3. CEMIRIDE and MRG (on behalf of the Endorois Welfare Council) v Kenya;, ACHPR AAR Annex (Jun 2009–Nov 2009), Communication 276/03.

4. Advisory Opinion of ACHPR on UNDRIP (Banjul: African Commission of Human and Peoples' Rights, 2007).

5. ACHPR v Kenya, African Court of Human and Peoples' Rights, Application 006/2012, African Court of Human and Peoples' Rights, May 2017.

6. Endorois have sometimes been classified as a sub-tribe of the Tugen tribe of the Kalenjin group. Under the 1999 census, Endorois were counted as part of the Kalenjin group, made up of the Nandi, Kipsigis, Keiro, Tugen and Marakwet among others.

7. Section 115(2) of the 1963 Kenya Constitution.

8. CEMIRIDE and MRG (on behalf of the Endorois Welfare Council) v Kenya; Communication 276/03, para 11.

9. Ibid., para 12.

10. Judgment in ACHPR v Kenya (at note iii above) refers to the Ogiek comprising about 20,000 members (at para. 6) but a more accurate number is provided above and as set out in para. 2 of the Applicant's Submissions on the Merits, available here: http://minorityrights.org/wp-content/uploads/2015/03/Final-MRG-merits-submissions-pdf.pdf (accessed 23 January 2018)

11. CEMIRIDE, Minority Rights Group International & Ogiek Peoples Development Programme (On Behalf Of The Ogiek Community) v Republic Of Kenya, ACHPR, Communication 381/09.

12. CEMIRIDE and OPDP are both NGOs registered in Kenya; OPDP works specifically to promote and protect Ogiek culture, land, language, environment, and human rights. The Ogiek were represented by the same legal team as the Endorois, who saw the Ogiek’s situation represented a clear opportunity to continue to advocate for the recognition and protection of indigenous peoples’ rights both in Kenya and within the African continent, this strengthening the protection offered by the Declaration.

13. http://en.african-court.org/images/Cases/Orders/006-2012-ORDER__of_Provisional_Measures-_African_Union_v._Kenya.pdf, accessed 6 February 2018.

14. Article 5(1(a) states "The following are entitled to submit cases to the Court: (a) the Commission": available at https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-establishment-african-court-human-and.

As one of the first cases to have been referred to the Court under this rule, and the first case in which judgment has been issued following a full hearing on the merits, the case was a pilot for both the Commission and the Court, testing out the process and creating significant procedural precedent.

15. See further http://www.achpr.org/mechanisms/indigenous-populations/about/

16. Report of the African Commission's Working Group of Experts on Indigenous Populations/ Communities (Banjul: African Commission of Human and Peoples' Rights and Copenhagen: IWGIA, 2005), first adopted by ACHPR in 2003 by ACHPR/Res.65 (XXXIV) and included in the 17th Annual Activity Report of the African Commission later noted and authorised for publication by the 4th Ordinary Session of the AHSG of the AU held in January 2005 in Abuja, Nigeria (Assembly/AU/Dec.56)

17. Albert K Barume, 'Responding to the concerns of the African States', in Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples, ed. C. Charters and R. Stavenhagen (Copenhagen: IWGIA document no 127, 2009): 170–83.

18. Advisory Opinion of ACHPR on UNDRIP (Banjul: African Commission of Human and Peoples' Rights, 2007) para 3; see also Response Note to the Draft Aide Memoire on the African Group on the UN Declaration on the Rights of Indigenous Peoples, available at https://www.ipacc.org.za/images/reports/human-rights/Response_to_Aide_Memoire_2007.pdf (accessed 6 February 2018)

19. Ibid., para 4.

20. Advisory Opinion of ACHPR on UNDRIP (Banjul: African Commission of Human and Peoples' Rights, 2007) para 8. Note that at this point, very little jurisprudence had been delivered by the African Commission on the rights of indigenous peoples, which at that point included simply The Katangese People Congress vs. Zaire, Communication 75/92, ACHPR 1995, on the right to self-determination; and The Social and Economic Rights Action Center and the Center for Economic, and Social Rights v Nigeria, Communication 155/96, ACHPR 2001, on peoples' and group rights.

21. See, for example, CEMIRIDE and MRG (on behalf of the Endorois Welfare Council) v Kenya;, ACHPR AAR Annex (Jun 2009–Nov 2009), Communication 276/03, para. 204.

22. ACHPR Res.121 (XXXII) 07: Resolution on the United Nations Declaration on the Rights of Indigenous Peoples.

23. Merits submissions in full are available here: http://minorityrights.org/wp-content/uploads/2015/03/CEMIRIDE-on-behalf-of-the-Endorois-Community-Communication-276.pdf (accessed 6 February 2018)

24. CEMIRIDE and MRG (on behalf of the Endorois Welfare Council) v Kenya;, ACHPR AAR Annex (Jun 2009–Nov 2009), Communication 276/03, para. 155.

25. Ibid., para. 162.

26. Ibid., paras. 173 and 251.

27. Ibid., para. 173.

28. See merits submissions, available at http://minorityrights.org/wp-content/uploads/2015/03/CEMIRIDE-on-behalf-of-the-Endorois-Community-Communication-276.pdf (accessed 6 February 2018), para 155.

29. Ibid., para. 199.

30. Ibid., para. 206.

31. Ibid., para. 204 (see reference to the Declaration in footnote 108)

32. Ibid., para. 207.

33. Ibid., Recommendation 1(c)

34. Ibid., para. 232.

35. ACHPR Res.197 (L) 11: Resolution on the Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Convention and the Designation of Lake Bogoria as a World Heritage site.

36. This specifically referenced the African Commission's Advisory Opinion on the UNDRIP – see footnote (iv) above; the Court also stated that it was entitled to draw such inspiration pursuant to Articles 60 and 61 of the Charter (ACHPR v Kenya, African Court of Human and Peoples' Rights, Application 006/2012, African Court of Human and Peoples' Rights, May 2017, para 108)

37. ACHPR v Kenya, African Court of Human and Peoples' Rights, Application 006/2012, African Court of Human and Peoples' Rights, May 2017, para 109.

38. Ibid., para 112.

39. Ibid., para 123.

40. Ibid., para 126.

41. Ibid., para 127.

42. Ibid., para 128.

43. Ogiek is already plural: Ogiot is the singular term.

44. Ibid., para 128.

45. Ibid., paras 129–30.

46. Ibid., para 131.

47. Ibid., paras 177–9.

48. Ibid.,, paras 180.

49. Indigenous Peoples in Africa: the Forgotten Peoples? (Banjul: African Commission of Human and Peoples' Rights and Copenhagen: IWGIA, 2006): 17.

50. ACHPR v Kenya, African Court of Human and Peoples' Rights, Application 006/2012, African Court of Human and Peoples' Rights, May 2017, para 181.

51. Ibid.

52. Ibid., para 183.

53. Ibid., paras 184–6.

54. Ibid., paras 187–90.

55. Ibid., para 208.

56. Ibid., paras 209–11.

57. Ibid., para. 147–9.

58. See further The Social and Economic Rights Action Center and the Center for Economic, and Social Rights v Nigeria, Communication 155/96, ACHPR 2001, where a violation of Article 4 was found against an indigenous community.

59. An interesting line of jurisprudence has emerged from the Indian Supreme Court in this respect: see, for example, Mohini Jain v State of Karnataka AIR (1981) Sup. Ct. 1864 (App 6), as referenced in Nwobike, Justice C, The African Commission on Human and Peoples’ Rights and the Demystification of Second and Third Generation Rights under the African Charter: Social and Economic Rights Action center (SERAC) and the Center for Economic and Social rights (CESR) v Nigeria, 1 Afr J Legal Stud 2 (2005) 129–46 at 135.

60. CEMIRIDE and MRG (on behalf of the Endorois Welfare Council) v Kenya;, ACHPR AAR Annex (Jun 2009–Nov 2009), Communication 276/03para 217.

61. See, for example, I/A Court H.R.,Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125; I/A Court H.R.,Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of March 29, 2006. Series C No. 146; I/A Court H.R., Xákmok Kásek Indigenous Community v Paraguay Merits, Reparations and Costs. Judgment Merits and reparations. Judgment of August 24, 2010. Series C No. 214.

62. ACHPR v Kenya, African Court of Human and Peoples' Rights, Application 006/2012, African Court of Human and Peoples' Rights, May 2017, paras 151–6.